Thomas Karketta Versus State Thr. Narcotics Control Bureau

Possession of Contrabands – Appeal against Conviction – Appellant stood convicted under Section 20(b)(ii)(c) of NDPS Act for being in possession of 61.49 kg ganja and has been sentenced to undergo Rigorous Imprisonment and to pay fine – Held that:- PW.4 along with PWs. 1, 3 and 6 have denied suggestions that nothing was recovered from possession of appellant and that all proceedings was conducted in police station – PW.9 clearly demonstrates that only four sealed sample were send to FSL, and not .....

in default of payment of fine to further suffer Simple Imprisonment for 6 months. 3. The aforesaid judgment and order of conviction is under challenge in the present appeal. 4. The appellant was arrested from near ISBT, Sarai Kale Khan, near IGL pump and was found to be in possession of four bags containing a total of 61.49 kg ganja. 5. The prosecution case is that, while HC Som Pal Singh (PW.1), Ct. Gurvinder Singh (PW.3), SI Shivraj Bisht (PW.4) and Ct. Prakash (PW.6) were on patrolling duty .....

ing their identities and particulars. 6. The appellant was found sitting on two red coloured bags. He was holding the strings of other two bags in his hands. He was apprehended and was told about the information which the Police party had about him. He was made aware of his legal rights to be search in the presence of a Gazetted Officers or a Magistrate by way of a written notice under Section 50 of the NDPS Act (Ex.PW.1/A; Carbon copy Ex. PW.3/A), but the appellant refused to exercise such opti .....

t, on which also the same seal was affixed. The seal, after its use was given to HC Som Pal Singh (PW.1). 8. SI Shivraj Bisht (PW.4), prepared a rukka and sent the same to PS Hazarat Nizammudin through Ct. Gurvinder Singh (PW.3). He was also entrusted with the sealed pullandas, FSL form and seizure memo for being given to the SHO. 9. Charge-sheet was filed against the appellant on 29/10/2009, where upon cognizance was taken under Section 20(b) (ii) (c) of the NDPS Act. 10. The prosecution has re .....

the standing instruction no. 1/88 dated 15/3/88 of the NCB namely that the samples must be dispatched to the laboratory within 72 hours of the seizure to avoid any legal objection c. The FSL form was not sent along with sample to the FSL, giving rise to strong suspicion of tampering with sample; and d. Lastly, non joining of any public or independent witness to the search, seizure and arrest and thereby raising doubts about the veracity of the search and seizure proceedings. 12. In order to app .....

st District where upon he was given instructions to conduct the raid. His request to four public persons to become witnesses in the search and seizure proceedings was refused. After complying with the provisions of under Section 50 of the NDPS Act, the appellant was searched. The four bags, of which the appellant was in possession of, contained ganja. The contraband recovered weighed 61.49 kg. Random sampling was done and separate pullandas were prepared which were sealed with the seal of SSB. T .....

who were the members of the raiding team have supported the prosecution version and have spoken about the appellant having been apprehended, after the compliance of Section 50 of the NDPS Act. 16. All the aforesaid witnesses have denied the suggestions that nothing was recovered from the possession of the appellant and that all proceedings was conducted in the police station. 17. Inspector Suresh Kaushik (PW.3), has stated that on 6/8/2009, he deposited the pullandas and FSL form at malkhana. 18 .....

nt, that the deposition of PW.9 clearly demonstrates that only four sealed sample pullandas were send to FSL, Rohini, and not the FSL form along with the same. It was submitted that in the laboratory, at the time of testing, verification of the seal on the samples is done by matching it with the seal on the FSL form. The FSL form, thus is an important safe guard to avoid any suspicion and the same not having been sent to the laboratory along with the sealed samples raises serious doubts about th .....

sed in stating about the FSL forms also being sent to the FSL along with sealed samples. 21. Now, to the issue of compliance of the provision of Section 42 of the NDPS Act. Section 42 of the NDPS Act reads as here under- Section-42. Power of entry, search, seizure and arrest without warrant or authorization.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department .....

person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act i .....

he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) Detail and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisatio .....

erior. 22. In Abdul Rashid Ibrahim Mansuri vs. State of Gujarat: (2000) 2 SCC 513, a three judge bench of Supreme Court held that compliance with the Section 42 of NDPS Act is mandatory and failure to take down the information in writing and forthwith send the report to the immediate Official Superior would cause prejudice to the accused. However in Sajan Abraham vs. State of Kerala: (2001) 6 SCC 692, which was also decided by a three Judge bench, it was held that Section 42 of NDPS Act was not .....

liance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before pr .....

a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances in .....

ny delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information receiv .....

thened with the amendment to Section 42 by Act 9 of 2001." 24. Admittedly, the present case hinges on the secret information having been provided by a spy to PW.4. There is no averment in the testimony of PW.4 regarding such secret information having been reduced in writing and sent to the Superior Officer. There is no DD entry regarding such secret information having been received by PW.4. As has been decided in Karnail Singh vs. State of Haryana (supra), the mandatory requirement is of wr .....

the consequences of non compliance of Section 42 of NDPS Act are grave. The stringent provisions of the NDPS Act cast a duty upon the prosecution to strictly follow the procedure and comply with all its safe guards. 25. The Supreme Court in Sukhdev Singh vs. State of Haryana:(2013) 2 SCC 212; has observed : "The provisions of Section 42 of NDPS Act are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Of .....

t strict compliance". 26. Though there has been delay of one and half months in sending the sample to FSL, which is in violation of the standing instructions of the NCB, nonetheless there is nothing on record to suggest or to come to the opinion that while the sealed samples were kept in the malkhana, they were tampered with. From the deposition of the witnesses, it becomes very clear that the samples were sent to the FSL, Rohini in proper and in untampered condition. It is normally expecte .....

izure and later arrest of the appellant. In this context, reference is made to testimony given by PW.3, wherein it has been admitted that no public witness was asked to join such proceedings. Similarly PW.4 has also admitted that no public person was requested to witness the search. However such statement was qualified by saying that no one was available at the time of search. 28. ASI Mahesh Singh (PW.5) has affirmed that the place where the appellant was arrested was a busy and crowded place. T .....

of independent persons joining the investigation and deposing before the Trial Court was not undermined wholly. 30. This Court finds that in most of the NDPS cases investigated by the police, there is a routine statement that persons who are asked to join the investigations declined to become witnesses. In the case in hand, this Court is not convinced that any sincere effort was made by the raiding party to associate public witnesses. The names and addresses of such persons have also not been no .....